Polan v. Travelers Ins. Co., 13148

• Decision Date: 14 November 1972
• Docket Number: No. 13148,13148
• Citation: 192 S.E.2d 481,156 W.Va. 250
• Court: West Virginia Supreme Court
• Parties: Jeffrey Charles POLAN, an infant, etc. v. The TRAVELERS INSURANCE COMPANY.

Page 481

192 S.E.2d 481

156 W.Va. 250

Jeffrey Charles POLAN, an infant, etc. v. The TRAVELERS INSURANCE COMPANY.

No. 13148.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 3, 1972.

Decided Nov. 14, 1972.

Syllabus by the Court

1. Where the terms of an insurance policy are clear and unambiguous they will not be construed but will be accorded their plain, ordinary and commonly accepted meaning.

2. When a prescribed period of time, such as a full three month period of employment, is to be determined, all of the days of such period, including the first and last days thereof, shall be counted.

3. An insurance policy which requires construction must be construed liberally in favor of the insured.

Steptoe & Johnson, Herbert G. Underwood, Clarksburg, for appellant.

Charence M. Rogers, Clarksburg, for appellee.

CAPLAN, Judge:

This is an appeal from a judgment of the Circuit Court of Harrison County in an action instituted by Jeffrey Charles Polan, an infant, who sued by his next friend, Lillian Polan. In that action the aforesaid plaintiff sought recovery from the defendants, The Travelers Insurance Company, a corporation, Mountain State Linen Service, Inc., a corporation and Mohenis Holding Corporation, alleging therein that he is entitled to a certain sum of money under an insurance policy issued by Travelers.

The case was submitted to the court in lieu of a jury on the complaint, the answer of Travelers Insurance Company and upon an Order Stipulating Exhibits and Facts. Upon consideration thereof the court entered an order reflecting its finding of facts and conclusions of law. An order was entered in favor of the plaintiff, directing payment to him in the sum of $3,840, plus costs, which represented the face amount of the policy plus interest from the time payment was due under the policy. Mountain State Linen Service, Inc., having been dismissed as a party to this action and service of process never having been obtained on Mohenis Holding Corporation, the judgment was entered against Travelers. After the motion by Travelers to alter or amend the judgment was denied by the court, this appeal was prosecuted.

According to the facts as stipulated by the parties, Charles B. Polan, the plaintiff's deceased father, was employed as a chauffeur-salesman by Mountain State Linen Service, Inc. on April 20, 1965. Mountain State was and is a subsidiary company of Mohenis Holding Corporation. Charles B. Polan died on July 20, 1965 as a result of an automobile collision which occurred on July 19, 1965, after he had worked that entire day. This collision was not in any way connected with his employment.

At the time of Mr. Polan's employment and continuing to the time of his death a group insurance policy covering employees of Mountain State who became eligible within the terms thereof was in effect, having been issued to Mohenis Holding Corporation. It is agreed that under the classification of employment his beneficiary, if he, Mr. Charles B. Polan, qualified under the policy, would be entitled to $3,000.00. The following provisions of the subject group insurance policy are brought into question on this appeal:

'SECTION 1. EMPLOYEES TO BE INSURED:

'A. Employees Eligible:

'(a) Employees whose employment commenced on or before April 7, 1952 are to be eligible on the effective date hereof, and '(b) other Employees are to be eligible on the date on which they complete Three months of service,'

'B. Effective Dates of Insurance:

'Each eligible Employee is to be insured hereunder from the date he becomes eligible; provided, however, that any Employee who is not actually at work on the date his insurance is to become effective shall not be insured until he actually returns to work.'

'SECTION 7. ENTIRE CONTRACT: MODIFICATIONS (9)

'This policy is issued and delivered in the state of Pennsylvania and shall be governed by the laws of that state. * * *'

The court, in holding for the plaintiff, concluded that Charles B. Polan, having worked the entire day of July 19, completed three months of service and thereby became eligible for coverage under the terms of the employees group insurance policy; that Charles B. Polan, having thus become eligible on July 19, 1965, was insured as of that date; and that the plaintiff was entitled to recover the sum of $3,000.00 plus interest.

The appellant, Travelers, assigns as error the court's holding that Charles B. Polan became eligible for coverage on July 19, 1965. It contends that under Pennsylvania law, which the policy provides shall govern it, the three months of service was not completed until July 20, 1965. This was arrived at by excluding April 20, the first day of Mr. Polan's employment. A further assignment of error relates to the date upon which Charles B. Polan attained the status of an insured. Here, Travelers takes the position that the insurance is effective from the date he becomes eligible, contending that the word 'from' connotes 'after', or the 'next day'. Travelers asserts that the eligibility date is the 20th day of July and that he would become insured on the 21st day of July. Inasmuch as Charles B. Polan did not work on July 20, 1965, the appellant says that he did not achieve eligibility under the terms of the policy.

Considering first the appellant's assertion that the plaintiff's deceased father did not attain eligibility under the policy, it is pertinent to examine the applicable provisions of that document. Thereunder, an employee becomes eligible 'on the date on which they complete Three months of servic'. As herein noted, the appellant says that, under Pennsylvania law, computation of the three months of service requires the exclusion of the first day of that three month period. In support thereof Travelers cites and quotes two Pennsylvania statutes, which it concedes are not directly in point;...